VISWANATHAN Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) The petitioner was in the service of the third respondent Cooperative Society. According to the petitioner, there was a mistake in his S.S.L.C. Book so far as the date of birth was concerned. It was entered as 5.8.1939. He applied for correction of the date of birth before the Commissioner for Government Examinations in accordance with R.3 of Chapter VI K.E.R.. There was delay in submitting the application before the Commissioner for Government Examinations. Therefore, it was rejected. Later in Ext. P1, the Government condoned the delay and directed to reconsider the application. The Commissioner rejected his request for correction. The petitioner took up the matter in appeal before the Government. Government allowed the appeal and again directed the matter for reconsideration as per Ext. P2 order. Finally the Commissioner for Government Examinations issued Ext. P5 produced along with the Reply affidavit, on 6.2.1997, according sanction to correct the date of birth of the petitioner from 5.8.1939 to 3.2.1941. This was on the basis of the birth register kept by the Panchayat concerned. Thus, the petitioner corrected the date of birth in the SSLC Book corrected as per Ext. P5, as 3.2.1941.

(2.) As already mentioned he was in the service of the 3rd respondent Cooperative Society. He had opened the service book at the time of entry in the service. That contained the date of birth as 5.8.1939 obviously based on the original entry in the S.S.L.C. book because Note to R.197 of the Cooperative Societies Rules provides that "the date of birth of the employee shall be that entered in the school admission register, Matriculation Book or S.S.L.C. Book". Therefore, the original entry in the S.S.L.C. Book was copied down to the service register by the Cooperative Society as per R.197 of the Kerala Cooperative Societies Rules. On getting the date of birth corrected as 3.2.1941, the petitioner approached the 3rd respondent Society for corresponding correction in the service register. That was declined. There upon he approached the Joint Registrar of Cooperative Societies. He also declined the request of the petitioner. He mainly relied on G.O. (P) No. 45/91 / P&ARD dated 30.12.1991 regarding the procedure for correction of date of birth of government servants which provide for a time limit. It also provides that the correction in the date of birth in the S.S.L.C. Book shall not be correspondingly carried out in the service book. It is in the above circumstances the petitioner has approached this Court with this Writ Petition challenging Ext. P4 and seeking corresponding correction in the service register in terms of Ext. P5 and seeking a direction that he shall be allowed to continue in the service beyond 31.8.1997 when he retired from service on the basis of the original entry.

(3.) The petitioner submits that the orders governing government servants' date of birth correction do not have any application to the employees in the Cooperative Societies. Once a date of birth is entered in the service book of a government servant, for its correction the necessary procedure provided for by the Government has to be followed. Necessarily, the time limit provided in the said order shall also be applicable. But, so far as the Cooperative Societies' employees are concerned, the entry of date of birth in the Service Register always "shall be that entered in the school admission register, Matriculation Book or S.S.L.C. Book". In other words, it cannot vary from the said records. Whenever there is correction in the said records, naturally that shall reflect in the service book also. That is the statutory provision as contained in R.197 of the Cooperative Societies Rules. Any executive order issued in respect of government servants even if it is found applicable to Cooperative Societies' Employees, cannot, alter the statute as contained in R.197. A Full Bench of this Court in Kunhikrishnan v. State of Kerala ( 1982 KLT 13 ) dealing with the date of birth correction of Aided School teachers, before amendment to R.28 of Chap.14A K.E.R., held that Government orders cannot override the statutory provisions. Before amendment to the said rule, a Note was added below R.28 Chap.14A K.E.R.. It is in the following words,